Beidler v. King

108 Ill. App. 23, 1903 Ill. App. LEXIS 85

• Court: Appellate Court of Illinois
• Decided: May 7, 1903
• Status: Published

Opinion

Mr. Justice Adams

delivered the opinion of the court.

Appellants’ counsel objects that the following instructions, 11, 12, 13, 14 and 18, given at appellee’s request, and an instruction given by the court, without request, are erroneous:

11. “The court instructs the jury that underand by the terms of said party wall contract between the said plaintiff, Emily A. King, and the said Jacob Beidler, the said Jacob Beidler and his heirs were the sole owners of the entire east wall of said burned building, and had the sole and exclusive control thereof until such time as the said plaintiff, Emily A. King, exercised her right to pay for and use some portion of said wall, and that prior to the times the said Emily A. King exercised her right to pay for and use portions of said wall she had no right, title or interest in said wall or any part thereof.”

12. “The court instructs the jury that under the terms of the party wall contract introduced in evidence between the plaintiff, Emily A. King, and Jacob Beidler, deceased, the said Jacob Beidler was, during his lifetime, and his heirs were after his death, the sole and exclusive owners of the portion of the east wall of said burned building not paid for by the said plaintiff, Emily A. King, and that as to such portion of said east wall of said burned building as you find from the evidence was not paid for by the said Emily A. King under such party wall contract, the said defendants are charged with the same responsibility for the protection, care and maintenance that they would have been charged with if there had been no party wall contract entered into between said Emily A. King and said Jacob Beidler, deceased.”

13. “ The court instructs the jury that as a matter of law the plaintiff has no right to go on or touch the portion of said east wall of said building not paid for by her, for the purpose of preventing the same from falling, or for any other purpose.”

14. “ The court instructs the jury that under the terms of said contracts between said plaintiff and said Jacob Beidler the said plaintiff, Emily A. King, did not have any control over or right to use any portion of said east wall of said burned building until she had paid therefor; and that the fact that she paid for and used portions of said wall gave her no rights in or control over the remainder of said wall, and that at no time did said Emily A. King have the right to go onto or touch the portion of said wall not paid for by her for the purpose of bracing, staying or protecting the same, to keep it from falling.”

18. “ The court instructs the jury that if you believe from the evidence that the portion of said east wall of said burned building, which was owned by said defendants, was above and to the rear of the portion of said wall which had been paid for and used by said plaintiff, and that the portion of said wall which was owned by said defendants was by them negligently permitted to lean, sag and fall over, and that said portion of said wall owned by the said defendants in its fall pulled over a part of the portion of said wall which said plaintiff had paid .for and was using, and that the portion of said wall which was paid for and used by said plaintiff would not have fallen if the portion of said wall owned by said defendants had not forced it over, then you should find said defendants guilty and assess the said plaintiff’s damages at such an amount as you believe from all the evidence and under the instructions of the court, she was damaged by the falling of said wall.”

Instruction given without request:

"The court instructs the jury that under the contract in evidence the duty was upon the defendants to exercise reasonable care in respect to all of the wall in question, save and except such part thereof as the plaintiff had paid to Jacob Beidler one-half the value of; therefore any damage caused by any defect in the partition of said wall, which plaintiff had so paid one-half the value of, plaintiff can not recover. As to the remainder of said wall, the court instructs you that it was the duty of the defendants to exercise reasonable care in respect to the same. It is for you to say from the evidence whether, from the time George Beidler, who acted for himself and his co-defendants in the care and management of said building, knew of the fact that said wall had been injured and damaged by fire, he used reasonable care and diligence in respect to the portion of said wall for which plaintiff had not paid one-half of the value, to prevent damages or injury to them for the same, or whether he was guilty of negligence in respect thereto. The question whether he exercised reasonable care and diligence in respect thereto, and is guilty of negligence, is a question of fact to be decided and determined by the jury from all the evidence in the case. If you, from the evidence, find that the plaintiff was without fault, and that defendants were guilty of negligence in respect to said portion of said wall for which plaintiff had not paid one-half the value, and that by reason and in consequence of such negligence said portion of said wall fell and injured the barn of plaintiff, you will find the defendants guilty; and on the other hand if you find the defendants exercised reasonable care in respect to said portion of said wall and are not guilty of negligence -in respect to the same, you will find the defendants not guilty.”

Instruction 11 is criticised as being an abstract proposition of law. The instruction is a correct interpretation of the contract between the parties, and it was within the province of the court to give it for the enlightenment of the jury. Counsel, in his argument, says, “ Instructions 12, 13, 14, and the one given by the court on its own motion tell the jury specifically that appellee had no right to touch that part of the party wall not paid for by her, and that she had no right to brace or protect the party wall from falling, if the same could have been done, and that she had no rights in or to that portion of the wall not paid for by her,” and claims that the instructions were erroneous in these respects. Instructions 11 and 12 informed the jury what the title of Beidler and his heirs was prior to the purchase by appellee of any part of the wall, and their title, after the purchase by appellee of part of the wall, in respect to the part of the wall not purchased by her, and their responsibility as to the part not so purchased. The 13th and 14th instructions are to the effect that appellee had no legal right to go on or touch any part of the wall not purchased by her. The instruction given by the court of its own motion instructs the jury as to the responsibility of appellants-in respect to the part of the wall not purchased by appellee, and on the question of negligence, etc. We think the instructions given substantially correct.

Appellants’ counsel contends that after appellee elected to use a part of the wall and paid therefor, “ the rights relative to repairs of the party wall were changed as to the whole wall,” and in support of this view quotes from the party wall agreement the following:

“ And the parties hereto further covenant and agree that if it shall become necessary to repair or rebuild any portion of said party wall or walls, before said party of the second part shall use or pay for her portion of the same, the expense or cost of such repairing or rebuilding shall be borne by the said first party; and further, if it shall become necessary to so repair or rebuild after the said party of the second part shall have used or paid for her portion of said wall, then and in that event the cost of such repairing or rebuilding shall be borne equally by the parties hereto, to the extent that they are each using said wall.”

Appellants argue, in substance, that appellee, by the last part of the language quoted, was bound to contribute to the cost of repair or rebuilding to the extent she is using the wall; that she was using about one-fourth of it, and therefore, if the repairing or rebuilding of any part of the wall becomes necessary, even though it be a part not purchased or used by her, she must pay her proportion of the cost. From this conclusion counsel deduces the corollary that appellants and appellee are interested, as it were, per my et per tout in every part of the wall, in the proportion of their respective interests, and that the duty to repair being common, neither can be liable to the other.

We can not concur in the premise of counsel that the words, “ then and in that event the cost of such repairing or rebuilding shall be borne equally by the parties thereto, to the extent that they are each using said wall,” are to be interpreted as meaning that each shall contribute to such cost as to every part of the wall. In interpreting any provision of a contract, the entire contract must be considered. This is elementary. The contract in question in express terms binds appellee to pay for only such part of the wall as she shall purchase, and it would be inconsistent with this to require that she should contribute to the cost of repairing or rebuilding any and every part of the wall which she did not purchase and did not use. By the agreement, the expense of repairing or rebuilding before the use of any part of the wall by appellee, devolves on appellants, but when appellee uses any part of the wall, she is to contribute to such expense as to the part she is using. The language is not that each shall pay in proportion to his interest, but that the cost “ shall be borne equally by the parties hereto to the extent that they are each using said wall,” meaning clearly, to the extent that they are both using said wall.

Appellant George Beidler, who acted for himself and the other appellants, recognized that the duty of taking down the wall devolved on appellants. When asked by the building inspector who should be served with notice to take down the wall, he told the inspector to make it out to the agent of the Beidler estate, and the inspector served the notice on him. Also, the contract for taking down the wall was made by appellants. Had appellee interfered with the work, it would probably have been urged against her right to recover.

Mickel v. York, 175 Ill. 62, is a case similar to the present. There was a party wall agreement between the parties, which contained the following:

“ And this indenture further witnesseth, that the said party of the first part does hereby covenant, promise, grant and agree that the said party of the second part, their heirs and assigns, shall and may, at all times hereafter, have the full and free liberty and privilege of joining to and using said partition above mentioned, as well below as above the surface of the ground, and along the whole length or any part of the length thereof, any building which he or they, or any of them, may desire or have occasion to erect on the said lot of the party of the second part, and to sink the joist of such building or buildings into the said partition to the depth of....inches, and no further; provided always, nevertheless, and on this express condition, that the said party of the second part, their heirs and assigns as aforesaid, before proceeding to join any building to the said partition wall, and making any use thereof or breaking into the same, shall pay or secure to be paid unto the said party of the first part, his heirs and assigns aforesaid, the full moiety or one-half part of the value of said party wall, or so much thereof as shall be joined to or used as aforesaid, which value shall be the cost price at the time when such wall is to be used by said party of the second part, as fixed, estimated and assessed by three disinterested mason contractors.”

The same provisions, in almost the same language, are contained in the agreement in the present case. Mickel had not, at the time of the fire, elected, to use any part of the wall. York, nevertheless, contended that the wall, when completed, belonged to both the parties, each owning the half resting on his lot, and an easement in the soil on which the other half rested. The court say:

“ Where a party wall of adjoining buildings rests partly upon the soil of each owner, and was constructed as a party wall, the owners are neither joint owners nor tenants in common of such wall. Each is possessed in severalty of his own soil up to the dividing line, and of that portion of the wall which rests upon it; but the soil of each, with the wall belonging to him, is burdened with an easement or servitude in favor of the other, to the end that it may afford a support to the wall and building of such other. But where a party wall has been constructed on the line between adjacent lots, resting partly on each, by one of the lot owners, under a parol or written agreement, by which agreement the other owner agrees to pay one-half of the value of the wall when he elects to use it, the builder of the wall owns it absolutely, with a permanent right in him and his grantees to have one-half the wall stand on the land of the other while the other retains title, and also after it has passed to an assignee with notice of the rights of the owner of the wall. If, however, by agreement, the owner of the lot who did not build the wall has a right to elect to pay one-half its value and use the same, and he does so, he thereby becomes the owner of not only the one-half standing upon his own land, but has an easement in the other half standing on the lot of the one who built the wall.”

Authorities cited by the court fully sustain the opinion. In the present case Jacob Beidler, deceased, who erected the wall on the dividing line between the lots, was, as the court instructed the jury, the exclusive owner of the wall up to the time when appellee paid for a part of it, in accordance with the agreement between Beidler and her. After appellee purchased and paid for that part of the wall to which her building was partly attached, she was the owner of the part so purchased, which was standing on her own land, and of an easement in the land of Beidler, on which the other half of the part so purchased was resting; and Beidler continued to be the sole owner of all that part of the wall not purchased by appellee, and, consequently, responsible as such owner, and so the court instructed the jury. By the very terms of the agreement, appellee could become the owner of only such part of the wall as she should purchase, in accordance with the agreement. She purchased only thirty-eight feet in height by one hundred and nineteen feet in length. That only-she owned. Necessarily, therefore, Beidler, while living, owned, and his heirs, appellants, now own, all that part of the wall not purchased by appellee, and, as owners, they are clearly responsible for any neglect in regard to it resulting in injury to others. Such neglect is within the legal maxim, sie utere tno ut alienum non laedas, of which appropriate instances are given in Broom’s Legal Maxims, 8th Am. Ed., star page 366 et sequens.

See also, McChesney v. Davis, 86 Ill. App. 380, and 18 Am. and Eng. Ency., 1st Ed., pp. 3-15, and cases cited in notes. In the cases cited, and in such cases as we have observed, the agreement was to pay half the expense of the party wall when the party not building should elect to use it; but no reason is perceived why the parties may not agree, as they did in -the present case, that the party not building may purchase and pay for any part of the wall, and care only for the part purchased and paid for. In this case they carried out the agreement as made. On each purchase of a part by appellee, an estimate was made of the cost price of such part at the date of the purchase, and payment was made as per the estimate.

Counsel for appellants complains of the refusal of the following instructions asked by appellants:

6. “ The court instructs the jury that if you believe from the evidence that the wall in question was in a dangerous and unsafe condition for several days and that the plaintiff had knowledge of the dangerous and unsafe condition, and that it was apparent from the dangerous and unsafe condition of the wall in question that it would fall and injure the property of the plaintiff, then it was the duty of the plaintiff to use ordinary care and diligence to protect her property and to prevent the injury if she could have done so at a moderate expense; and if through her negligence in not doing so. her property was damaged, she can not recover, and you should find the issues for the defendants.”

7. “ The court instructs the jury that if you believe from the evidence that the plaintiff had knowledge of the condition of the wall of which she complains, and if at a moderate expense or by the exercise of ordinary care and effort she could have protected her property from the alleged injury, and she failed and neglected to do so, then she can .not recover, and you should find the issues for the defendants.”

Instruction 6 apparently assumes that appellee was guilty of negligence, and was, as we think, properly refused. By another instruction given for appellants the jury, were instructed that if they believed the plaintiff was guilty of negligence which contributed to the injury, she could not recover, and they should find for the defendants; and by the instruction given by the court of its own motion, above quoted, the court required the jury to find, in order to warrant a verdict for the plaintiff, not only that the defendants were negligent, but “ that plaintiff was without fault.” We find no reversible error in the refusal of these instructions.

Appellants’ counsel, at the close of the plaintiff’s case, and also at the close of all the evidence, requested the court to instruct the jury to find the defendants not guilty, and counsel contends that the refusal of each of these instructions was error, for two reasons: namely, that no negligence on the part of the defendants was shown, and that the plaintiff was guilty of contributory negligence. The questions whether the defendants were guilty of negligence which caused the injury, and whether the plaintiff omitted to exercise ordinary care, were submitted to the jury by defendants’ fifth instruction quoted in the argument for appellants. The instruction is as follows:

“ The court instructs the jury that to entitle the plaintiff to recover the jury must believe from the evidence that the injury complained of was occasioned by the carelessness or negligence of the defendants or their servants in the manner charged in the declaration. And if the jury believe from the evidence that the plaintiff was guilty of negligence contributing to the injury, then the plaintiff can not recover, and the jury should find for the defendants.”

If the evidence fairly and reasonably tended to prove the plaintiff’s case as stated in the declaration, it would have been error to take the case from the jury. Having carefully considered the evidence and the arguments of counsel, we are of opinion that the evidence not only tended to prove the plaintiff’s case, but that the verdict is sustained by the evidence, and certainly is not manifestly contrary to the weight of the evidence. It is not contended that the sum awarded as damages is excessive.

The judgment will be affirmed.